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Joe Hand Promotions, Inc. v. SNP Hookah Lounge and Grill LLC

United States District Court, S.D. Texas, Houston Division

July 31, 2019

JOE HAND PROMOTIONS, INC., Plaintiff,
v.
SNP HOOKAH LOUNGE AND GRILL LLC, et al., Defendants.

          MEMORANDUM AND ORDER

          NANCY F. ATLAS, SENIOR UNITED STATES DISTRICT JUDGE

         Before the Court in this anti-piracy lawsuit is Plaintiff Joe Hand Promotions, Inc.'s (“Joe Hand”) Motion for Summary Judgment and Supporting Brief (“Motion for Summary Judgment” or “Motion”) [Doc. # 34] seeking judgment against Defendants Mohd Azeem Nasir Mahmood, Muhammad Alam Millu, and Nasir Mahmood (collectively, the “Individual Defendants”). The Individual Defendants have not filed a response, and their time to do so has expired.[1] The Motion is ripe for decision. Based on Joe Hand's briefing, relevant matters of record, and pertinent legal authority, the Court grants Joe Hand's Motion for Summary Judgment.

         I. BACKGROUND

         Plaintiff Joe Hand initiated this lawsuit on May 30, 2018, against Defendant SNP Hookah Lounge and Grill LLC (“SNP Hookah”) and the Individual Defendants.[2] Joe Hand alleges that all Defendants engaged in the unauthorized and illegal interception and/or receipt and exhibition of the Ultimate Fighting Championship® 205: Alvarez vs. McGregor broadcast on November 12, 2016 (the “Event”) at their establishment known as SNP Hookah Lounge in Houston, Texas (the “Establishment”).[3] Joe Hand asserts claims for satellite and cable piracy under the Federal Communication Act, 47 U.S.C. §§ 553 and 605.

         On February 6, 2019, Joe Hand served the Individual Defendants with Requests for Admission.[4] To date, Defendants have not responded to the Requests.

         On February 21, 2019, the Court entered a Default Judgment [Doc. # 30] in favor of Joe Hand against SNP Hookah for its violation of 47 U.S.C. § 605. The Court awarded statutory damages under § 605(e)(3)(C)(i)(II) in the amount of $5, 000 and additional damages under § 605(e)(3)(C)(ii) in the amount of $20, 000, plus interest, costs, and reasonable attorney fees.

         Joe Hand seeks the entry of summary judgment that all Defendants are jointly and severally liable for: $5, 000 in statutory damages under § 605(e)(3)(C)(i)(II); $20, 000 in additional damages under § 605(e)(3)(C)(ii); $1, 075.00 in costs; attorney fees; and post-judgment interest.

         II. LEGAL STANDARDS

         A. Summary Judgment

         Under Federal Rule of Civil Procedure 56, “[a] party may move for summary judgment, identifying each claim or defense-or the part of each claim or defense-on which summary judgment is sought.” Fed.R.Civ.P. 56(a). Summary judgment on a claim or part of a claim is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Seacor Holdings, Inc. v. Commonwealth Ins. Co., 635 F.3d 675, 680 (5th Cir. 2011) (quoting Fed.R.Civ.P. 56(a)).

         Where, as here, the movant would bear the burden of proof at trial, the movant “must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in [its] favor.” See Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986) (first alteration in original). As a party asserting that certain facts cannot be genuinely disputed, Joe Hand “has the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings and materials in the record, if any, which it believes demonstrate the absence of a genuine [dispute] of material fact.” See Deutsche Bank Nat'l Tr. Co. v. Cardona, No. 7:16-CV-448, 2017 WL 2999272, at *1 (S.D. Tex. Apr. 20, 2017). See also Fed. R. Civ. P. 56(c)(1). Once the movant meets its burden, “[t]he burden then shifts to ‘the nonmoving party to go beyond the pleadings and by her own affidavits [and other competent evidence] designate specific facts showing that there is a genuine issue for trial.'” Davis v. Fort Bend County, 765 F.3d 480, 484 (5th Cir. 2014) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)).

         In deciding whether a genuine and material fact issue has been created, the court reviews the facts and inferences to be drawn from them in the light most favorable to the nonmoving party. Reaves Brokerage Co. v. Sunbelt Fruit & Vegetable Co., 336 F.3d 410, 412 (5th Cir. 2003). A genuine issue of material fact exists when the evidence is such that a reasonable jury could return a verdict for the non-movant. Tamez v. Manthey, 589 F.3d 764, 769 (5th Cir. 2009) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

         B. Anti-Piracy Under 47 U.S.C. § 605

         Section 605 states that “[n]o person not being authorized by the sender shall intercept any radio communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person.” 47 U.S.C. § 605(a). “Section 605 is a strict liability statute.” Innovative Sports Mgmt., Inc. v. Martinez, No. 4:15-CV-01460, 2017 WL 6508184, at *3 (S.D. Tex. Dec. 19, 2017) (citing Joe Hand Promotions, Inc. v. 152 Bronx, L.P., 11 F.Supp.3d 747, 753 (S.D. Tex. 2014)). To establish liability, Joe Hand must show that (1) the Event was exhibited in SNP Hookah Lounge and (2) Joe Hand did not authorize the particular exhibition of the Event. See id.; Joe Hand Promotions, 11 F.Supp.3d at 753; J & J Sports Prods., Inc. v. Casita Guanajuato, Inc., No. A-13-CA-824-SS, 2014 WL 1092177, at *1 (W.D. Tex. Mar. 19, 2014).

         Persons aggrieved by violations of § 605 are authorized to bring civil suits to enforce its provisions. See 47 U.S.C. § 605(e)(3)(A). A successful § 605 claimant may be awarded injunctive relief, damages, and “the recovery of full costs, including . . . attorneys' fees.” See Id. § 605(e)(3)(B). The prevailing party may elect to recover their actual damages or statutory damages. See id. § 605(e)(3)(C)(i). If the prevailing party elects to receive statutory damages, the court may award damages between $1, 000 and $10, 000 for each violation. See Id. § 605(e)(3)(C)(i)(I)-(II). The Court also has discretion to award additional damages up to $100, 00 for violations “committed willfully and for purposes of direct or indirect commercial advantage or private financial gain.” See Id. § 605(e)(3)(C)(ii).

         III. DISCUSSION

         A. Summary Judgment

         Joe Hand seeks summary judgment that all Defendants are jointly and severally liable under 47 U.S.C. § 605 for pirating Joe Hand's broadcast. Defendants have not responded to Joe Hand's Motion for Summary Judgment and the Individual Defendants have not responded to Joe Hand's Requests for Admission.

         A non-movant's failure to respond does not permit a federal court to grant a “default” summary judgment. See Innovative Sports Mgmt., 2017 WL 6508184, at *4 (“[A] federal court may not grant a ‘default' summary judgment where no response has been filed.” (quoting Bradley v. Chevron U.S.A., Inc., No. Civ. A. 204CV092J, 2004 WL 2847463, at *1 (N.D. Tex. Dec. 10, 2004)); Brown v. Bank of Am., No. 3:13-CV-2666-D, 2014 WL 12531162, at *1 (N.D. Tex. Jan. 14, 2014) (“Plaintiffs' failure to respond does not, of course, permit the court to enter a ‘default' summary judgment.”). “Nevertheless, if no response to the motion for summary judgment has been filed, the court may find as undisputed the statement of facts in the motion for summary judgment.” Innovative Sports Mgmt., 2017 WL 6508184, at *4. See Fed. R. Civ. P. 56(e)(2) (“If a party . . . fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the ...


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